Kellogg Brown & Root, LLC

National Labor Relations Board - Administrative Judge Opinions

Apr 4, 2016

31-CA-140948 (N.L.R.B. Apr. 4, 2016)

JD(SF)–16–16
Mountain Pass, California
& Houston, Texas
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
KELLOGG BROWN & ROOT LLC
and MOLYCORP, INC.
and Cases 31–CA–140948
31–CA–145896
DAVID L. TOTTEN, an Individual
Nikki N. Cheaney, Esq.,
for the General Counsel.
Howard S. Linzy, Esq. & Thomas J. Woodford, Esq. (The Kullman Firm, PLC),
for the Respondents.
Leonard H. Sansanowicz, Esq. (Feldman Browne Olivares, APC),
for the Charging Party.
DECISION
JEFFREY D. WEDEKIND, Administrative Law Judge. This is another case involving an
alleged unlawful mandatory individual arbitration provision. On December 31, 2015, the
General Counsel, the Charging Party (David Totten), and the Respondents (Kellogg Brown &
Root LLC and Molycorp, Inc.) filed a joint motion and stipulation of facts requesting that the
allegations be decided without a hearing based on the stipulated record. The motion was
granted, and the General Counsel and the Respondents thereafter filed briefs on March 25, 2016.1
Based on those briefs and the entire stipulated record, for the reasons set forth below I find that
the Respondents unlawfully maintained and/or enforced the subject arbitration provision as
alleged.
Kellogg Brown & Root provides engineering, procurement, and construction services,
and maintains an office and place of business in Houston, Texas. Molycorp manufactures
custom rare earth and metal products, and has an office and place of business in Greenwood
Village, Colorado, and a facility in Mountain Pass, California.2
Totten was employed by Kellogg until June 2013, when he was terminated pursuant to a
reduction in force. A year later, in July 2014, he filed a class-action lawsuit in California
superior court against both Kellogg and Molycorp, which he alleged was his joint employer,
seeking unpaid wages and other relief under various California statutes.

1 See Sec. 102.35(a)(9) of the Board’s rules. Totten did not file a brief. However, like the
General Counsel and the Respondents, he attached a short statement of position to the joint
motion and stipulation of facts.
2 Respondents do not dispute, and the record establishes, that they satisfy the Board’s
jurisdictional commerce standards.
JD(SF)–16–16
2
Respondents subsequently removed the action to federal district court. A month later, on
September 25, 2014, they jointly moved the district court to compel arbitration of Totten’s
individual wage claims and to dismiss the purported class and representative claims. They did so
pursuant to a provision in Kellogg’s Dispute Resolution Program Plan & Rules, which is
incorporated into a Dispute Resolution Agreement that Kellogg has required all employees, 5
including Totten, to sign as a condition of employment. The provision states that all disputes3
shall be resolved through individual arbitration, thereby prohibiting employees from asserting
claims in a class or representative capacity in either judicial or arbitral forums.
Citing D. R. Horton, 357 NLRB 2277 (2012), and Murphy Oil USA, Inc., 361 NLRB No. 10
72 (2014), the General Counsel alleges that Kellogg and Molycorp thereby violated Section
8(a)(1) of the National Labor Relations Act. Specifically, the General Counsel alleges that
Kellogg violated the Act by maintaining the individual arbitration provision as a condition of
employment, and that both Kellogg and Molycorp violated the Act by seeking to enforce the
provision against Totten in his class-action suit. 15
Respondents dispute the allegations, arguing that D. R. Horton and Murphy Oil were
wrongly decided and rejected in relevant part on appeal by the Fifth Circuit, 4 the jurisdiction
where Kellogg maintains its principal place of business. However, the Board fully explained in
Murphy Oil why it continued to adhere to D. R. Horton notwithstanding the Fifth Circuit’s20
refusal to enforce that decision. And while the Fifth Circuit subsequently refused to enforce
Murphy Oil as well, it acknowledged the Board’s right not to acquiesce to the circuit court’s
decision in light of the multiple venue options for obtaining review of Board orders under
Section 10(f) of the Act.5 In any event, administrative law judges must follow Board precedent
unless and until it is overruled by the Supreme Court. Pathmark Stores, Inc., 342 NLRB 378 n. 25
1 (2004).
Respondents also argue that the General Counsel’s allegations should be dismissed for
several other reasons. As discussed below, however, these arguments are likewise contrary to
Board precedent.30
(1) Timing of Totten’s charges. Respondents argue that the complaint should be
dismissed because Totten did not file the 8(a)(1) charges with the Board until November 2014
and February 2015, well over 6 months after he initially signed the dispute resolution agreement
in January 2012. However, the Board has repeatedly rejected this argument in previous D. R. 35
Horton/Murphy Oil cases, holding that an 8(a)(1) violation may be found where, as here, an
unlawful policy has been maintained and/or enforced within 6 months of the charge, regardless
of when the policy became effective or was acknowledged by the employee. See Cowabunga,
Inc., 363 NLRB No.133, slip op. at 2 (2016); Fuji Food Products, Inc., 363 NLRB No. 118, slip
op. at 1 n. 1, 7 (2016); and Employer’s Resource, 363 NLRB No. 59, slip op. at 1 n. 2, 5 n.340
(2015), and cases cited there.

3 NLRB unfair labor practice charges and proceedings are excepted.
4 D. R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir 2013); and Murphy Oil USA, Inc. v.
NLRB, 808 F.3d 1013 (5th Cir. 2015).
5 808 F.3d at 1018. See also Murphy Oil, 361 NLRB No. 72, slip op. at 2 n. 17; and D. L.
Baker, Inc., 351 NLRB 515, 529 n. 42 (2007) (discussing the Board’s nonacquiescence policy).
JD(SF)–16–16
3
(2) Totten’s employee status. Respondents also argue that the complaint should be
dismissed because Totten was terminated for reasons unrelated to any current labor dispute or
unfair labor practice, and was therefore not an “employee” of Kellogg within the meaning of
Section 2(3) of the Act when they sought to enforce the arbitration provision in his class-action
suit. However, the Board has repeatedly rejected this argument in prior cases too, holding that5
former employees are protected by the Act and may file unfair labor practice charges over their
former employer’s post-termination maintenance and enforcement of an individual arbitration
policy, even if they were terminated for reasons unrelated to any labor dispute or unfair labor
practice. See Cowabunga, slip op. at 2; Fuji Food Products, slip op. at 1 n. 1, 7; Employer’s
Resource, slip op. at 1 n. 2, 6; and Cellular Sales of Missouri, 362 NLRB No. 27, slip op. at 6–7 10
(2015).
Respondents assert that Totten was not an employee when he worked for Kellogg, but
was instead employed as a supervisor. See Respondents’ answer, GC Exh. 1(n), par. 3 (Totten “is
not now and was not an employee of [Kellogg] within the meaning of the Act during any 15
relevant time periods”), and par. 6 (“when [Totten] was last employed by [Kellogg] in June 2013
he was a supervisor with the meaning of the Act”); and Respondents’ brief at 3. However,
Respondents, which have the burden of proving supervisory status under Section 2(11) of the
Act (see NLRB v. Kentucky River Community Care, 532 U.S. 706, 710–713 (2001)), have failed
to establish that Totten worked as a supervisor throughout his employment. Indeed, 20
Respondents’ August 27, 2014 statement in support of removing Totten’s class action complaint
to federal court stated that Totten “worked as a rigger and rigging foreman at the Molycorp
Mountain Pass rare earth facility in Mountain Pass, California from January 16, 2012 through
June 17, 2013,” earning $26–$33 per hour (Jt. Exh. 5, at 8). Thus, by Respondents’ own
admission, Totten worked as a rigger part of the time he was employed.6 In any event, even if 25
Totten was designated a “rigging foreman” throughout his employment, it is well settled that an
individual’s job title alone is insufficient to establish supervisory status. Heritage Hall, 333
NLRB 458, 458–459 (2001). See also du Pont, E.I., de Nemours & Co., 89 NLRB 119 (1950)
(finding that the employer’s rigger foreman was an employee rather than a supervisor).
30
Respondents’ brief also argues that the General Counsel failed to allege and prove that
Totten continues to seek paid employment, citing Chemical Workers Local 1 v. Pittsburgh Plate
Glass, 404 U.S. 157 (1971) (retirees who have abandoned the workforce are not employees
under the Act); and WBAI Pacifica Foundation, 328 NLRB 1273 (1999) (unpaid staff are not
employees under the Act). However, Respondents did not raise this issue in either their answer 35
to the complaint or their statement of position filed with the parties’ stipulation. Nor is the issue,
or any fact relevant to it, set forth in the stipulation itself. Respondents cite no Board precedent
requiring the General Counsel in such circumstances to present evidence or prove that a former
employee continued to seek paid employment. And what precedent there is indicates otherwise.
See Fuji Food Products, slip op. at 7 n. 8 (noting, in rejecting the employer’s argument that the 40
charging party was no longer an employee under 2(3) of the Act, that the employer did not

6 Respondents’ August 27, 2014 statement to the district court, which the parties made part of
the stipulated record in this proceeding, may properly be considered as an evidentiary admission
under FRE 801(d)(2). See generally 30B Fed. Prac. & Proc. Evid. sec. 7026 (2014 ed., database
updated April 2015); and Spurlino Materials, LLC, 357 NLRB 1510 n. 1, 1516 n. 20 (2011),
enfd. 805 F.3d 1131 (D.C. Cir. 2015).
JD(SF)–16–16
4
contend that she had abandoned the workforce after her employment ended); Toering Electric
Co., 351 NLRB 225, 233 (2007) (holding that, in hiring discrimination cases, the General
Counsel does not have to prove the applicant had a genuine interest in working for the employer
unless the employer puts it at issue by presenting evidence that creates a reasonable question
regarding the applicant’s actual interest); and Central Transport, Inc., 247 NLRB 1482, 1482–5
1483, JD n. 1 (1980) (finding, in a hiring discrimination case, that the General Counsel did not
have to present evidence that the alleged discriminatee was an employee rather than an
independent contractor, as the employer had not raised this issue in its answer or at the hearing),
cited with approval in BKN, Inc., 333 NLRB 143, 144 n. 3 (2001), reaffirmed FedEx Home
Delivery, 361 NLRB No. 55, slip op. at 2 (2014) (as with supervisory status, the burden is on the 10
party asserting that an individual is an independent contractor rather than an employee to prove
it). See also Boeing Company, 362 NLRB No. 195, slip op. at 1 n. 1 (2015) (finding, in a
stipulated-record case, that the employer waived its right to challenge the authority of the
General Counsel to prosecute the case, as the employer failed to raise the argument in its answer
or pleadings, and the stipulation identified only three issues in dispute, none of which questioned 15
the General Counsel’s authority).
(3) Totten’s concerted activity. Respondents also argue that the allegations should be
dismissed because Totten did not engage in any concerted activity protected by the Act.
However, again, the Board in prior cases has repeatedly rejected this argument, holding that the 20
filing of an employment-related class or collective action by an individual constitutes concerted
activity under the Act. See Cowabunga, slip op. at 2; Fuji Food Products, slip op. at 1 n. 1; and
Employer’s Resource, slip op at 1 n. 2, 7, and cases cited there.
(4) Molycorp’s employer status. Finally, Respondents argue that the allegations against 25
Molycorp should be dismissed because Totten was never actually employed by Molycorp.
However, the Board in prior cases has repeatedly rejected this argument as well, holding that an
employer may properly be held accountable for restricting or interfering with an employee’s
rights under the Act regardless of whether it is or was an employer of that employee. See
Employer’s Resource, slip op. at 1 n. 2, 6 (2015); and Countrywide Financial Corp., 362 NLRB 30
No. 165, slip op. at 1 n. 2 (2015), citing New York New York Hotel & Casino, 356 NLRB 907,
911 (2011), enfd. 676 F.3d 193 (D.C. Cir. 2012), cert. denied 133 S.Ct. 1580 (2013). Under that
precedent, Molycorp’s alleged enforcement violation under D. R. Horton and Murphy Oil is
sufficiently established by the stipulated facts that it is an employer engaged in commerce
generally and that it joined in Kellogg’s motion to dismiss Totten’s class and representative 35
claims pursuant to the unlawful dispute resolution provision.7
CONCLUSIONS OF LAW
1. Respondent Kellogg has engaged in unfair labor practices affecting commerce within 40
the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by:

7 It is therefore unnecessary to address Totten’s contention that he was jointly employed by
Kellogg and Molycorp. Although the position statement he filed with the parties’ joint motion
and stipulation cites several facts supporting a joint-employer finding, none of those facts are
included in the parties’ stipulation or properly the subject of judicial notice.
JD(SF)–16–16
5
a. Maintaining, as a condition of employment, a mandatory individual arbitration policy
that prohibits employees from pursuing claims in a class or representative capacity in both
judicial and arbitral forums; and
b. Seeking to enforce the foregoing arbitration policy against Totten since September 5
2014.
2. Respondent Molycorp has likewise engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act by seeking
to enforce the foregoing arbitration policy against Totten since September 2014.10
REMEDY
Consistent with D. R. Horton and Murphy Oil, Respondent Kellogg will be required to
rescind or revise the Dispute Resolution Program Plan & Rules and the Dispute Resolution 15
Agreement containing the unlawful mandatory arbitration provision, and to notify Totten and
other current and former employees who signed or were subject to the plan or agreement that it
has done so.
With respect to Totten’s class action suit, I take judicial notice under FRE 201 that the20
following events occurred after the parties filed their joint motion and stipulation of facts in this
proceeding:
(1) On January 22, 2016, the federal district court (Dolly M. Gee, J.) granted the
Respondents’ motion to compel arbitration to the extent Totten asserted individual claims, but 25
denied their motion to dismiss Totten’s class claims (Totten v. Kellogg Brown & Root, LLC et
al., --- F.Supp.3d --- 2016 WL 316019 (C.D. Cal. Jan. 22, 2016)); and
(2) On February 22, 2016, Respondents filed an appeal from the district court’s order
with the Ninth Circuit (Docket No. 16–55260), which remains pending. 30
Respondents Kellogg and Molycorp will therefore be required to notify the appeals court that
Kellogg has revised or rescinded the dispute resolution plan and agreement, and that
Respondents no longer oppose Totten’s class or representative claims on the basis that they are
barred by the mandatory individual arbitration provision therein. See Ross Stores, 363 NLRB 35
No. 79 (2015).
Respondents will also be required to reimburse Totten for all reasonable expenses and
legal fees, with interest, incurred in opposing both their motion to dismiss the class and
representative claims and their appeal from the district court’s adverse ruling on the motion. 40
Interest shall be computed and compounded daily as set forth in New Horizons, 283 NLRB 1173
(1987) and Kentucky River Medical Center, 356 NLRB 6 (2010).
Finally, as requested in the General Counsel’s complaint, Respondents will be required to
post a notice to employees; Kellogg at all locations where the dispute resolution plan and/or 45
agreement have been in effect, and Molycorp at its facility in Mountain Pass, California.
Respondents will also be required to distribute the notice electronically, including by email, if
JD(SF)–16–16
6
they customarily communicate with employees by such means. See J. Picini Flooring, 356
NLRB 11, 14 (2010). And they will be required to mail the notice in the event they have gone
out of business or have closed or ceased providing services at a particular facility covered by the
order. See, e.g., SBM Management Services, 362 NLRB No. 144, slip op. at 1 n. 3 (2015).
5
The General Counsel’s complaint requests an unconditional notice-mailing remedy, i.e.
that Respondents be required to mail the notice to their employees regardless of whether
Respondents have gone out of business or have closed or ceased providing services at a
particular facility. However, the Board considers this to be an extraordinary remedy. See J.
Picini Flooring, above. And the General Counsel cites no extraordinary circumstances justifying 10
it here. Although the General Counsel’s brief (pp. 10–11) addresses why the other remedies
requested in the complaint are appropriate, it conspicuously fails to address the requested notice-
mailing remedy. The Board has not routinely included this remedy in other cases under D. R.
Horton and Murphy Oil (notwithstanding that it would be a relatively simple matter for
respondents to include a copy of the Board’s notice when they notify their employees that the 15
unlawful arbitration provision has been rescinded or revised). Nor has the Board routinely
included the remedy in cases arising in the construction industry. See Six Star Janitorial, 28–
CA–023491, 2014 WL 28670 (Jan. 2, 2014), citing Engineering Contractors, 357 NLRB 1553
(2011), and McCarthy Construction Co., 355 NLRB 50, 53–54 (2010), incorporated by
reference 355 NLRB 365 (2010). 20

Accordingly, based on the foregoing and the record as a whole, I issue the following
order.8
ORDER25
A. The National Labor Relations Board orders that Respondent Kellogg Brown & Root
LLC, Houston, Texas, its officers, agents, successors, and assigns, shall
1. Cease and desist from30
(a) Maintaining and/or enforcing a mandatory arbitration provision that requires
employees, as a condition of employment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
35
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
40
(a) Rescind the mandatory arbitration provision in all of its forms, or revise it in all of its
forms to make clear to employees that the arbitration provision does not constitute a waiver of
their right to maintain employment-related joint, class, or collective actions in all forums.

8 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules,
be adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–16–16
7
(b) Notify all current and former employees who were required to sign or otherwise
become bound to the mandatory arbitration provision in any form that it has been rescinded or
revised and, if revised, provide them a copy of the revised provision.
5
(c) Notify the U.S. Court of Appeals for the Ninth Circuit in Totten v. Kellogg Brown &
Root, LLC et al., Docket No. 16–55260, that it has rescinded or revised the mandatory arbitration
provision upon which it based its motion to dismiss Totten’s class and representative claims, and
inform the court that it no longer opposes the claims on the basis of the arbitration provision.
10
(d) Reimburse Totten for any reasonable attorneys' fees and litigation expenses that he
may have incurred in the above action in opposing the Respondent's motion to dismiss his class
and representative claims and Respondents’ appeal of the district court’s denial of that motion.
(e) Within 14 days after service by the Region, post copies of the attached notice marked 15
“Appendix A” at all of its facilities where the arbitration provision has been maintained.9 Copies
of the notice, on forms provided by the Region, after being signed by the Respondent's
authorized representative, shall be posted and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily posted. In addition to
physical posting of paper notices, notices shall be distributed electronically, such as by email, 20
posting on an intranet or an internet site, and/or other electronic means, if the Respondent
customarily communicates with its employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these proceedings, the Respondent has gone
out of business or has closed or ceased doing business at a facility covered by this order, the 25
Respondent shall duplicate and mail, at its own expense, a copy of the notice marked “Appendix
A” to all current employees and former employees employed by the Respondent at those
facilities at any time since April 17, 2014.
(f) Within 21 days after service by the Region, file with the Regional Director for Region
31 a sworn certification of a responsible official on a form provided by the Region attesting to 30
the steps that the Respondent has taken to comply.
B. The National Labor Relations Board orders that Respondent Molycorp, Inc.,
Greenwood Village, Colorado, and Mountain Pass, California, its officers, agents, successors,
and assigns, shall35
1. Cease and desist from

9 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notices reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.”
JD(SF)–16–16
8
(a) Enforcing a mandatory arbitration provision that requires employees, as a condition
of employment, to waive the right to maintain class or collective actions in all forums, whether
arbitral or judicial.
(b) In any like or related manner interfering with, restraining, or coercing employees in 5
the exercise of the rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Inform the U.S. Court of Appeals for the Ninth Circuit in Totten v. Kellogg Brown & 10
Root, LLC et al., Docket No. 16–55260, that it no longer opposes Totten’s class and
representative claims on the basis of the mandatory arbitration provision maintained by Kellogg
Brown & Root LLC.
(b) Reimburse Totten for any reasonable attorneys' fees and litigation expenses that he 15
may have incurred in the above action in opposing the Respondent's motion to dismiss his class
and representative claims and Respondents’ appeal of the district court’s denial of that motion.
(c) Within 14 days after service by the Region, post at its Mountain Pass, California
facility copies of the attached notice marked ““Appendix B.” Copies of the notice, on forms 20
provided by the Region, after being signed by the Respondent's authorized representative, shall
be posted and maintained for 60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if the Respondent customarily communicates with its 25
employees by such means. Reasonable steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of business or has closed or ceased
doing business at the facility covered by this order, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice marked “Appendix B” to all current employees and former 30
employees employed by the Respondent at that facility at any time since September 25, 2014.
(d) Within 21 days after service by the Region, file with the Regional Director for
Region 31 a sworn certification of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to comply.35
Dated, Washington, D.C. April 4, 2016
40
e
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT maintain and/or enforce a mandatory arbitration provision that requires
employees, as a condition of employment, to waive the right to maintain class or collective
actions in all forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL rescind the unlawful mandatory arbitration provision in all of its forms, or revise it in
all of its forms to make clear that the arbitration provision does not constitute a waiver of your
right to maintain employment-related joint, class, or collective actions in all forums.
WE WILL notify all current and former employees who were required to sign or otherwise
become bound to the mandatory arbitration provision in any form that it has been rescinded or
revised and, if revised, WE WILL provide them a copy of the revised provision.
WE WILL notify the U.S. Court of Appeals for the Ninth Circuit in Totten v. Kellogg Brown &
Root, LLC et al., Docket No. 16–55260, that we have rescinded or revised the mandatory
arbitration provision upon which we based our motion to dismiss David Totten’s class and
representative claims against us, and inform the court that we no longer oppose the claims on the
basis of the arbitration provision.
WE WILL reimburse Totten for any reasonable attorneys' fees and litigation expenses that he
may have incurred in the above court proceeding in opposing our motion to dismiss his class and
representative claims and our appeal of the district court’s denial of that motion, with interest.
KELLOGG BROWN & ROOT LLC
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11500 West Olympic Boulevard, Suite 600, Los Angeles, CA 90064
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge's decision can be found at www.nlrb.gov/case/31-CA-140948 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (310) 235–7424.
APPENDIX B
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT enforce a mandatory arbitration provision that requires employees, as a
condition of employment, to waive the right to maintain class or collective actions in all forums,
whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL notify the U.S. Court of Appeals for the Ninth Circuit in Totten v. Kellogg Brown &
Root, LLC et al., Docket No. 16–55260, that we no longer oppose David Totten’s class and
representative claims against us on the basis of the mandatory arbitration provision maintained
by Kellogg Brown & Root LLC.
WE WILL reimburse Totten for any reasonable attorneys' fees and litigation expenses that he
may have incurred in the above court proceeding in opposing our motion to dismiss his class and
representative claims and our appeal of the district court’s denial of that motion, with interest.
MOLYCORP, INC.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
11500 West Olympic Boulevard, Suite 600, Los Angeles, CA 90064
(310) 235-7352, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge's decision can be found at www.nlrb.gov/case/31-CA-140948 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE
DATE OF POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE
WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (310) 235–7424.